The current Arizona child custody statutes have been in effect  since January 1, 2013.   Yes, I said “custody.”  Until the new label, “legal decision-making” , becomes widely known, I will continue to use the word “custody” at least to some extent in this blog and in my communications with laypersons and prospective clients.  Eventually the concept of  “legal decision-making” will take hold and replace “custody” just as the concept of “parenting time” for parents replaced “visitation” over the course of several years following that statutory change.

Even before the new statutes became effective, most judges were beginning their analyses with the presumption that legal decision-making should be equally shared unless there was a solid factual and legal basis to award one parent sole legal decision-making.  I believe that will continue to be the case under the new statutes but that the presumption in favor of joint legal decision-making will now be even stronger.

As to parenting time, the new statutes certainly slant toward equal time for both parents.  Under new A.R.S. Section 25-403.02 B., “the court shall adopt a parenting plan that . . . maximizes

[the parents’] respective parenting time.”  Emphasis added.  Even under the old statutes, however, there had been a strong trend toward awarding parents equal parenting time.  I believe the trend toward equal parenting time will continue and become even stronger under the new statutes.  In cases where both parents desire maximum parenting time,  and where there are no significant concerns of substance abuse, domestic violence or mental health issues, it is my opinion that equal parenting time will become the norm.

In fact, over the past year I have seen that come about.  Absent significant evidence indicating that equal decision-making and equal parenting time are not in the children’s best interests, my experience is that judges are routinely ordering equal decision-making and equal time.  I have even had several judges say in open court that they will award equal decision-making and equal time unless one parent can convince them they shouldn’t.

Shared legal decision-making and equal parenting time were not mandatory under the old statues, however, and they not mandatory under the new statutes.   Judges still have discretion to award sole legal decision-making and/or unequal time if they make factual findings that such orders are in the best interests of the children.   See A.R.S. Section 25-403.01 A. and A.R.S. Section 25-403 B.  In the future, however, I believe sole legal decision-making rulings and lopsided parenting time schedules will become a rarity, with shared legal decision-making and equal time or nearly equal time becoming standard.

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